Harassment, Hostile Environment, and Bullying: How To Figure Out If They're Illegal

Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker or they are in a "hostile work environment" that they automatically have a claim against the employer. This is simply not the case. While general harassment and bullying are legal in all states, some states have pending legislation on workplace bullying. Since 2003, many states have introduced workplace bullying laws, none of which have passed (except, oddly, Tennessee, and that's just for government employees).

Illegal harassment: The only types of harassment or hostile environment that are illegal are harassment due to race, age, sex, sexual orientation, religion, national origin, color, disability, pregnancy, genetic information, having objected to illegal activity, having taken Family and Medical Leave, making a worker’s compensation claim, or having engaged in activity that is otherwise protected by a statute (in some states, other categories might be taking domestic violence leave, having a firearm in your vehicle, marital status, because of testimony under subpoena). If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

Report it: The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court (not my rule - talk to the folks in the robes) says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

Employer’s duty: Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. But they don’t have to take any action at all, or tell you what they did. They only have a duty to maintain a safe workplace. You might still have to work with the harasser. Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved. Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or your state agency, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

What to put in the report: General harassment, hostile environment, bullying, and other disruptive behavior that is not addressed to an employee due to a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RELIGIOUS HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior. While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

Bullies are a huge drain on corporate time and assets. Employers should adopt zero tolerance policies regarding bullies. But even if they do, reporting bullies won’t protect you from retaliation unless your state legislature or Congress wises up and passes an anti-bullying law.

If you are harassed or are in a hostile work environment, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.

Florida Employers Must Grant Leave To Domestic Violence Victims

I've always said that Florida is one of the most anti-employee states in the nation. But we do have some pro-employee laws. One law that many employers forget about is Fla. Stat. Sec. 741.313, which requires them to give leave to employees who are domestic violence and sexual violence victims.

Who is covered?: This applies to employers with 50 or more employees and to an employee who has been employed for at least 3 months. “Victim” means an individual who has been subjected to domestic violence or sexual violence.

When are you covered and how long?: "An employer shall permit an employee to request and take up to 3 working days of leave from work in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. This leave may be with or without pay, at the discretion of the employer."

What can you use the leave for?: Seeking an injunction, getting medical help, going to a shelter or crisis center, securing the home, and getting legal assistance. Here are the specifics.

This section applies if an employee uses the leave from work to: 

1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
2. Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence or sexual violence;
3. Obtain services from a victim services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence or sexual violence;
4. Make the employee’s home secure from the perpetrator of the domestic violence or sexual violence or to seek new housing to escape the perpetrator; or
5. Seek legal assistance in addressing issues arising from the act of domestic violence or sexual violence or to attend and prepare for court-related proceedings arising from the act of domestic violence or sexual violence.

How much notice do you have to give?: If you or a family member are in imminent danger, none. Otherwise, you have to give "appropriate advance notice of the leave as required by the employer’s policy along with sufficient documentation of the act of domestic violence or sexual violence as required by the employer."

What if you have other leave?: "An employee seeking leave under this section must, before receiving the leave, exhaust all annual or vacation leave, personal leave, and sick leave, if applicable, that is available to the employee, unless the employer waives this requirement."

Can your employer tell coworkers about your domestic violence leave?: No. They have to keep it confidential.

Can your employer punish you for taking leave?: No. 

(a) An employer may not interfere with, restrain, or deny the exercise of or any attempt by an employee to exercise any right provided under this section.
(b) An employer may not discharge, demote, suspend, retaliate, or in any other manner discriminate against an employee for exercising his or her rights under this section.

What is your remedy?: You can file a civil suit for damages or equitable relief, or both, in circuit court. You can seek all wages and benefits that would have been due up to and including the date of the judgment had the act violating the law not occurred, but you can't claim wages or benefits for a period of leave granted without pay. You still have to mitigate damages by looking for another job or accepting reinstatement if offered.

So there. I said something good about Florida employment law. Happy? 

This law has been on the books since 2007, and there have been precious few pro-employee laws since then (or before). We can still do much better by looking to other states for some pro-employee laws that make sense.

Claiming A Religious Exemption For Vaccines Or Masks? Here's What You Need To Know

 Lots of folks don't want to wear masks and/or get vaccinated. Almost daily I get inquiries about how to claim religious exemptions for them. 

I don’t know of any religious exemptions for masks. I've never heard of any religion claiming they are not allowed. I'd love to hear from you if you know of one. Some religions do object to the vaccines. However, even ChristianScientists don't have an official policy for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. Even then, it is allowed if it's the only one available. Mostly, I am hearing from people in some more obscure Christian sects that say they are not allowed to be vaccinated.

Here are some things to think about if you are claiming a religious exemption. A company may ask a question like this to follow up a claim of religious exemption:

Please describe above the manner (if any) that the same religious beliefs that are the basis for your objection to the COVID-19 vaccine impacts or informs other aspects of your life or manifests itself in other ways of your life. Please be as specific/detailed as possible.

If your employer asks this, they are looking for examples other than the COVID vaccine relating to, for instance, believing the human body is the temple of God, not wanting the skin to be marked, not wanting to pollute or defile the body, or not using chemical substances to boost the immune system.

Some ways to answer this:

• Can you give examples such as not having been vaccinated, or not being vaccinated since a conversion, not taking antibiotics, or not taking any supplements to boost the immune system, etc? 
• Is there a doctor who can confirm you refused such treatments when ill? 
• Do you also decline alcohol and other similar substances?
• Do you refrain from having tattoos?

They are looking for specific examples, not Bible passages or long rants. If you can show that you have been consistent, then you will likely succeed and be granted a religious accommodation. They might require an alternative, such as masking or remote work instead.

In Florida, all you have to do is fill out one form for a vaccine exemption, and they have pre-filled what you need to provide. All it says is, "Pursuant to section 381.00317, Florida Statutes: I hereby declare that I decline the COVID-19 vaccination because of a sincerely held religious belief, which may include a sincerely held moral or ethical belief." Other states have similar forms that simplify the claim of a religious exemption.

However, while the Florida form is very basic, you'd best have a good answer if your employer finds out you've had other vaccines, or otherwise have been inconsistent in your application of those beliefs. While they can't fire you for claiming an exemption, they can still fire you for lying.

The other issue with a religious exemption is that an employer can claim allowing it will cause a hardship. And a hardship isn't that difficult to prove for a religious accommodation. All they need to show is more than a de minimis cost or burden on business operations. 

So claiming a religious exemption is not something I recommend unless you truly have a religious objection, rather than a personal or political one. If you have a sincere religious belief against vaccinations, then go ahead and request a religious accommodation, but expect that they will require other protective measures or claim an undue hardship and fire you.

No Forced Arbitration For Sexual Harassment Is A Good Start

The House and Senate have passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. It will go into effect once signed by President Biden. This law will ban forced arbitration and class action waivers  for all claims regarding sexual assault and sexual harassment. This was the House version, which is much better than the original Senate version that limited what was defined as sexual harassment. The version passed covers all sexual harassment cases as we know them.

 

Here's what it says:

§ 401. Definitions

“In this chapter:

“(1) PREDISPUTE ARBITRATION AGREEMENT.—The term ‘predispute arbitration agreement’ means any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.

“(2) PREDISPUTE JOINT-ACTION WAIVER.—The term ‘predispute joint-action waiver’ means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.

“(3) SEXUAL ASSAULT DISPUTE.—The term ‘sexual assault dispute’ means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.

“(4) SEXUAL HARASSMENT DISPUTE.—The term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

Ҥ 402. No validity or enforceability

“(a) In General.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

“(b) Determination Of Applicability.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”.

While this doesn't apply to sex discrimination that isn't harassment (such as a termination, suspension without pay, denial of promotion or failure to hire where sexual favors aren't requested), it does apply to harassment due to gender, and to harassment due to sexual orientation, as well as to harassment when sexual favors are requested. If you are singled out for harassment due to either gender or sexual orientation, that is sexual harassment under Title VII and under some state law, such as the Florida Civil Rights Act.

There is a move afoot to ban forced arbitration in other types of discrimination and harassment cases. This is a good start, but it isn't the end.

Why does it matter? Because arbitration is a secret tribunal, which is bad enough. Arbitration started as a good thing, where both parties chose it as a quicker way to resolve cases. The arbitrators were experts in complicated matters like construction. But it's come a long way from that.

The way forced arbitration works now is the big arbitration companies contract with corporations to be the arbitration forum they use for employment disputes. While the parties can pick from panel members and veto others, the panels tend to be skewed to pro-employer arbitrators. After all, if Arbitrator A rules against Company B, Arbitrator A is then forever vetoed as a panelist for Company B. And Company B spreads the word. Arbitrator A gets fewer and fewer cases. Goodbye income as an arbitrator.

So it's in arbitrators' interests, especially full-time arbitrators, to rule for employers. They don't care if employees, who will be in front of them once, are upset. They do care if a company that will be in front of them 200 times will be upset and veto them.

I'm not saying all arbitrators think like this. Many are still true neutrals. Heck, I'm an arbitrator. Because of my background representing employees, I'm rarely picked in employment cases because employers think I won't be neutral (untrue, by the way). Management-side lawyers and HR folks get picked a lot, and can make a nice income from them. 

Under many agreements, employees must pay half the arbitration expenses. Arbitrators are paid by the hour, and filing fees in high dollar cases can be huge. Employees can be forced to shell out thousands of dollars, if not tens of thousands of dollars, just to pay for the arbitrator and filing fee. Court costs a moderate filing fee of a few hundred dollars. Judges are paid by tax dollars, so the parties pay nothing.

I've seen too many situations where employment arbitration was basically an expensive kangaroo court. And there's almost no remedy. No appeal. No ability to challenge most rulings. And because it's secret, sexual harassment and sexual assault can be kept secret. Court is public. Anyone can attend a trial or hearing. Employers hate that.

Employers love the arbitration system. Love, love, love it. Employees should fight forced arbitration wherever they can. Now is a good time to call your representatives and tell them it's time to end forced arbitration.

How To Prove Race Discrimination In The Workplace

You'd think after Black Lives Matter that people would realize race discrimination still exists. Still, many folks think we had a Black President, so that was the end of race discrimination. It can be difficult to prove race discrimination, but it isn't impossible.

How do you figure out whether you were targeted due to your race? Here are some factors to consider:

• Comments: If your boss makes comments about race, that's direct evidence of race discrimination. Maybe they have made comments complaining about BLM. Or they've posted racist stuff on social media. It doesn't have to be the n-word or anything that blatant. Comments about "the hood" or other more subtle comments about certain areas or people can indicate racism. 
• Different treatment: If you are selected as one of the employees to be laid off but less qualified employees of a different race are kept on, then that is also evidence of race discrimination. Same if you apply for a job. Let's say the position you apply for requires a certification. You have it but the White employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 5 years with all good reviews and the promotion is given to an employee of a different race, that could be evidence of race discrimination. 
• Disparate discipline: If you are targeted for discipline for picky things that employees of a different race also do and aren't disciplined for, then that is another sign that you are being targeted due to race. Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the Black employees aren't, that could be race discrimination in itself. If you are terminated for something people of a different race have done with only a warning, that is evidence of race discrimination.
• Harassment: If you are being targeted for harassment but employees of a different race are not, that is also evidence of racial harassment. If there are other employees of your same race under the same supervisor, are they also being targeted? 
• Evidence: Remember, your own testimony is evidence. So are your notes. Chats, emails, voice mails, photos, printouts of social media, can also be evidence. If you have witnesses, ask them to write you a note about what happened if you think they will support you. Or if you don't feel comfortable asking, at least keep track of witness names and any contact information you have.

What to do? If you think you've been targeted due to your race, then there are some steps to take.

• Report it: If it's harassment, meaning basically something that doesn't affect your wallet, then you need to report it to HR or management. Look in your handbook to see where it says to report discrimination. The Supreme Court says that if you are being harassed due to your race and don't report it, the employer might not be liable for discriminatory harassment. I suggest putting it in writing. Call it Formal Complaint of Race Discrimination. Then lay out in detail all the ways you are being singled out due to your race. Keep a copy of what you send. That way they can't deny later that you complained about race discrimination. Remember, say the words. Bullying and general harassment aren't illegal.
• Keep good notes: Write down all the comments and ways you've been singled out. Make note of dates, times, and any witnesses. Keep copies of documents, text messages, emails, chats, and other evidence. Take them home or keep them in a purse or briefcase. Don't keep them in your desk or somewhere the employer can take them away from you.
• Contact a lawyer: If you think you're being targeted due to your race, especially if you have been demoted, suspended without pay, or terminated, talk to an employment lawyer in your state. 
• File with EEOC: Filing with EEOC is something you must do before filing a lawsuit under Title VII for race discrimination. Depending on your state, you have 180 days or 300 days to file. You might want to talk to a lawyer before doing so. EEOC can't award you money, but they do have a terrific mediation program, so if your employer agrees to participate it could settle there without the hassle of a lawsuit.

While proving race discrimination can be difficult, if you gather enough evidence and keep good notes, you are well on your way to proving your case.

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.

Florida and Feds in Vaccine Mandate War - So Far Florida Wins

 I posted previously about OSHA's vaccine mandate. Now, OSHA has temporarily suspended enforcement, due to the 5th Circuit Court of Appeals' entry of a temporary injunction against enforcement. OSHA will appeal, but in the meantime, states like Florida are hurrying to implement let's-kill-our-constituents laws to ban vaccine mandates.

Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions for religion and disability, mask-wearing, having immunity, periodic testing, and pregnancy (federal law already has exemptions for religion, disability and pregnancy):

 A private employer may not impose a COVID-19 96 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; religious reasons; COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment. 

The law details how to claim each exemption, and imposes fines on employers for noncompliance.

In the meantime, there is also the issue of mandates for healthcare workers. So far, the Administration has continued to enforce such mandates. The Supreme Court refused to enjoin enforcement. However, the 5th Circuit, which does not include Florida, did enjoin enforcement in 10 states, and another court which enjoined enforcement in Kansas. If resisting vaccine mandates for healthcare workers isn't the most idiotic and dangerous thing I've ever heard of, it's close. I certainly don't, as a consumer/patient, want any healthcare worker who isn't vaccinated anywhere near me.

Then there's the mandate for federal contractors. One court has enjoined enforcement in Ohio, Kentucky, and Tennessee.

So, there's a mishmash of state laws, and there are a bunch of folks challenging every single vaccine mandate. Vaccines save lives, so the folks pushing these challenges are going to get people killed. But right now, it looks like the mandates are losing. 

Hopefully the Supremes will decide that the federal government does indeed have the right and duty to protect its citizens. Otherwise, anti-vaxers will start challenging other vaccines. Welcome back polio, smallpox, and other diseases we thought were gone. 

Let sanity commonsense prevail.